THE SUPREME COURT: OVERVIEW

THE SUPREME COURT: OVERVIEW; In a Momentous Term, Justices Remake the Law, and the Court

By LINDA GREENHOUSE

Published: July 1, 2003

WASHINGTON, June 30—
The Supreme Court term that ended last week will leave as big an imprint as any in recent memory -- not only on the country, but on the court itself in ways few could have expected when the term began.

Not only are the justices, whose average age is near 70, now involved in an unanticipated dialogue about the nature of human sexuality, they have displayed a new attentiveness to legal developments in the rest of the world and to the court's role in keeping the United States in step with them.

In an amazing final week, the court preserved affirmative action in university admissions, providing a safe harbor for a policy that Justice Sandra Day O'Connor's majority opinion described not as something to be grudgingly tolerated but as close to a moral imperative. Then the court found in the Constitution's due process guarantee a demand for gay men and lesbians to be accorded dignity and respect for their private sexual behavior.

These rulings followed by several weeks a decision that was in many ways equally surprising, opening states to lawsuits for violations of the federal Family and Medical Leave Act. Chief Justice William H. Rehnquist described that law as an appropriate exercise of Congressional power to combat stereotypes about female workers' domestic responsibilities and ''thereby dismantle persisting gender-based barriers'' facing women in the workplace.

Each of the three cases ''addressed a rather new but rather widely supported cultural development and gave it constitutional legitimacy,'' Professor Paul Gewirtz of Yale Law School said. To some extent the court was leading the country, and to some extent it was playing catch-up, but the most significant aspect of the term, Professor Gewirtz said in an interview, was the court's role in ''consolidating cultural developments,'' legitimizing them and translating them into ''binding legal principle.''

Justice Antonin Scalia, in a bitter dissenting opinion in the gay rights case, accused the court of having ''taken sides in the culture war,'' and there was little dispute that, to some degree, at least, he was right. Justice Anthony M. Kennedy's majority opinion in Lawrence v. Texas provided much for Justice Scalia to regret, not least its embrace of the right-to-privacy line of cases that began with a birth control decision in 1965 and culminated 30 years ago in the abortion decision, Roe v. Wade.

And Justice Kennedy's citation of a 1981 gay rights opinion by the European Court of Human Rights, the first time a decision of that court has been invoked by a majority of the Supreme Court, marked a stinging defeat for Justice Scalia, who has tried to hold back the court's steadily growing interest in foreign legal developments. Justice Scalia criticized the majority's use of that decision, which Justice Kennedy cited as evidence of a Western consensus on sexual privacy, as ''meaningless'' and ''dangerous,'' saying the court should not impose foreign views on American constitutional law.

The voting patterns this term gave Justice Scalia ample cause for disaffection. Thirty of 71 cases decided by published opinions were unanimous, leaving 41 contested cases. In these, Justices Scalia and Clarence Thomas were the court's most frequent dissenters, with 16 and 21 dissenting votes respectively. This was a change from recent terms, when Justice John Paul Stevens, the court's most liberal member, was consistently the most frequent dissenter.

Justice Stevens dissented 15 times this term, as did Justice Ruth Bader Ginsburg. The fewest dissenting votes, as usual, were cast by Justice O'Connor, with eight, followed by Chief Justice Rehnquist, with nine -- making the indisputably conservative chief justice appear almost a centrist in the court's current spectrum.

In fact, ''this term suggested a split between two kinds of conservative Republicans,'' Walter Dellinger, a former acting solicitor general and longtime student of the court, said in an interview. Justices Kennedy and O'Connor ''share the sensibilities of corporate Republicans, who often have a bit of a libertarian streak in them,'' he said, while on social issues, ''Scalia and Thomas represent the Moral Majority strain, which is vocal but not necessarily dominant.''

Chief Justice Rehnquist, Mr. Dellinger said, often occupies a middle position between the two groups.

The voting record in the court's most closely divided cases demonstrates Justice O'Connor's pivotal role. There were 14 cases decided by 5-to-4 votes, accounting for 20 percent, compared with 28 percent last year. In the 2000-1 term, the fractious year of the Bush v. Gore election decision, fully one-third of the court's cases were decided, as that one was, on 5-to-4 votes.

Justice O'Connor was in the majority this term in all but 2 of the 14 5-to-4 decisions. In five of those, including two that upheld California's three-strikes sentencing law, she cast her vote with her more conservative colleagues. In four others, including the Michigan law school case and a case that preserved a nationwide program that provides money for legal services for the poor, she voted with Justices Stevens, Ginsburg, David H. Souter and Stephen G. Breyer.